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March 6, 2008

Should A School Be Able To Punish A Student For What They Write On A Blog ?

by Doug Mataconis

That’s the issue that the Court of Appeals for the Second Circuit is currently dealing with:

Avery Doninger, 17, claims officials at Lewis S. Mills High School violated her free speech rights when they barred her from serving on the student council because of what she wrote from her home computer.

In her Internet journal, Doninger said officials were canceling the school’s annual Jamfest, which is similar to a battle of the bands contest. The event, which she helped coordinate, was rescheduled.

According to the lawsuit, she wrote: “`Jamfest’ is canceled due to douchebags in central office,” and also referred to an administrator who was “pissed off.”

After discovering the blog entry, school officials refused to allow Doninger to run for re-election as class secretary. Doninger won anyway with write-in votes, but was not allowed to serve.

A lower federal court had supported the school. U.S. District Judge Mark Kravitz, denying Doninger’s request for an injunction, said he believed she could be punished for writing in a blog because the blog addressed school issues and was likely to be read by other students.

Her lawyer, Jon L. Schoenhorn, told the appeals court Tuesday that what students write on the Internet should not give schools more cause to regulate off-campus speech.

“It’s just a bigger soapbox,” he said.

But Thomas R. Gerarde, an attorney for school officials, argued that the Internet has completely changed the way students communicate.

The Supreme Court has issued four major rulings on the issue of student’s First Amendment rights in school over the years. In the first such case, Tinker v. Des Moines Independent Community School District where the Court held that a school could not discipline students who wore anti-Vietnam War armbands to school because the student’s speech did not cause a disruption to school activities and constituted protected speech. Two other cases — Bethel School District v. Fraser and Hazelwood v. Kuhlmeier — seemed to limit the scope of student free speech rights, but both are unique cases; the Fraser case involved a student who had given a speech filled with sexual inneundo at an assembly, and Hazelwood involved the extent to which the school had editorial control over a school-sanctioned student newspaper.

Most recently, the issue of the free speech rights of students was before the Supreme Court a year ago in what has become known as the “Bong Hits 4 Jesus” case. In that case, a school had suspended a student who had unfurled, as an apparent joke, a banner that read “Bong Hits 4 Jesus” during a school outing to watch the Olympic Torch pass through town. The school suspended the student, and the Supreme Court ruled that the suspension did not violate the student’s First Amendment rights:

WASHINGTON — The Supreme Court tightened limits on student speech Monday, ruling against a high school student and his 14-foot-long “Bong Hits 4 Jesus” banner.

Schools may prohibit student expression that can be interpreted as advocating drug use, Chief Justice John Roberts wrote for the court in a 5-4 ruling.

Joseph Frederick unfurled his homemade sign on a winter morning in 2002, as the Olympic torch made its way through Juneau, Alaska, en route to the Winter Olympics in Salt Lake City.

Frederick said the banner was a nonsensical message that he first saw on a snowboard. He intended the banner to proclaim his right to say anything at all.

His principal, Deborah Morse, said the phrase was a pro-drug message that had no place at a school-sanctioned event. Frederick denied that he was advocating for drug use.

“The message on Frederick’s banner is cryptic,” Roberts said. “But Principal Morse thought the banner would be interpreted by those viewing it as promoting illegal drug use, and that interpretation is plainly a reasonable one.”

Agree or disagree with the decision, and I disagree with it, that is the law of the land.

So where does that leave our student blogger ?

First of all, neither Bethel nor Hazelwood would seem to be applicable here; the student’s blog was not school-sanctioned activity. Moreover, it seems fairly clear that this situation is closer to Tinker than it is to Morse.  The student was making a comment on an event at school and expressing, albeit not in the language of William F. Buckley, her opinion of school officials. She was not mis-behaving at an official school function, nor was she participating in an off-campus school event; she was sitting in her home writing on her blog.

In the Tinker case, Justice Abe Fortas wrote in the majority opinion the following:

“It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Nor can it be argued that they lose those rights when they’re sitting in their bedroom blogging.

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7 Comments

  1. Agree or disagree with the decision, and I disagree with it, that is the law of the land.”

    No.

    Alito’s controlling concurrence in Morse held unambiguously that the case was to be limited to: (a) speech advocating illegal drug use, and (b) exempting speech that could in any way be deemed “political.”

    The Doninger fact pattern fails both tests. It would be plain error to apply Morse. That might not stop the judges from doing so, but it would be plain error nonetheless.

    Comment by KipEsquire — March 6, 2008 @ 7:02 am
  2. Kip,

    You are correct, I probably should have said that Morse is the law of the land at least with respect to the limited fact issues that it dealt with.

    Comment by Doug Mataconis — March 6, 2008 @ 7:04 am
  3. If we got the state out of the business of education things like this would not be a problem.

    Comment by Ben — March 6, 2008 @ 10:54 am
  4. If all she said was douchebag that’s pretty mild in my book.

    Comment by Raymond — March 6, 2008 @ 10:31 pm
  5. I see no justification for the school board to have this sort of power in the law or in ethics.

    Of course, that doesn’t stop them from doing it, or things like it, such as leaking a kid’s educational records as retribution on his parents.

    Tyranny comes in all levels of government, not just at the top. In fact, it often is more nasty at the local level because not enough people are paying attention to fight it.

    Comment by Brad Warbiany — March 6, 2008 @ 11:32 pm
  6. She was not punished. Extra curricular activities are a privilege not a right. She can’t expect to bad-mouth the school and then be on Student Coucil. Judge Preska something like, “If we let kids call teachers name then chaos will erupt.” If she had been suspended or expelled there would be a case – but running for class office is not a right.

    Comment by Lisa — March 7, 2008 @ 3:47 am
  7. Agree with Lisa. If she had been suspended, that’s one thing, but its like a football removing a “captain”. They can still participate, but just not as a leader. Is that REALLY such a bad message to send?
    Or think of it this way, if the student had walked just off campus and built a billboard saying “D-Bags!”, would the school REALLY be unable to do anything about it?

    Comment by Michael — March 7, 2008 @ 4:05 am

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